MAC Board votes to shift Annual Conference to virtual sessions

The 2020 MAC Annual Conference will be a virtual event stretching across several days in late August, the MAC Board of Directors decided during a meeting on Friday.

“With counties and vendors alike still sorting through the budget problems caused by COVID, we had a real concern that attendance would drop, and the event would be costly for MAC,” said Board President Veronica Klinefelt of Macomb County. “Based on the success of the Virtual Legislative Conference and the continuing research of our MAC staff, the Board saw a virtual event as the better option.”

The virtual event will include workshops, plenary sessions, opportunities to interact with exhibiting vendors, board elections and the Annual Business Meeting on Aug. 18 to approve MAC’s policy platforms for the coming year.

The Board approved the draft platforms for the membership vote this week. Those drafts soon will be made available on MAC’s website and sent electronically to all counties for members’ review in advance of the Annual Business Meeting.

Since this year’s session will be done electronically, the Board also voted to require that all member amendments for the platforms be submitted in writing to MAC by 5 p.m. on Aug. 7. Amendments will not be accepted from “the floor” during the virtual meeting on Aug. 18.

Full details about the virtual conference, including exact dates, speakers and registration, will be released in early July.

The conference originally was scheduled for Aug. 16-19 at the Radisson Hotel in downtown Kalamazoo. MAC has arranged with the venue to reset that in-person event to 2023.

MAC’s conferences in 2021 are scheduled for April 27-29 in Lansing (Legislative) and Sept. 26-28 at the Grand Hotel on Mackinac Island (Annual).

For the latest conference-related news, visit MAC’s website.

 

This article originally appeared in the April 2020 edition of Michigan Counties.

Name: Sen. Jim Ananich

District/counties: 27th/Genesee County

Committees: Government Operations

Term #: 2nd full term

Previous public service: Michigan House of Representatives, 2011-2013; Flint City Council, 2005-2009

What is the most pressing issue facing Michigan now?

COVID-19 is at the front of every Michiganders’ mind right now and that is certainly the most serious issue facing us right now. The spread of this virus has touched every aspect of our daily lives. Huge sectors of Michigan’s economy have come to a direct halt, and in the coming weeks and months, the state government will aggressively be pursuing ways to ensure residents have access to the resources they need to recover from this. We will remain diligent partners with those at the federal and local levels as well as the governor’s office until we’re out of the woods. Michiganders are tough and we’re going to get through this together. 

Based on your experience, how important are counties to the effective delivery of public services?

As we’ve seen in real time over the past weeks and months, counties have been extremely important leaders in the response to the coronavirus. County health officials have been on the front lines working to mitigate the spread and communicate updates to residents.

County work behind the scenes is just as valuable as their work in the face of a crisis. I have worked with so many effective local officials on critical issues ranging from Flint water to expanding health care and environmental protections.

As the Senate minority leader since 2014, what are some of the key leadership skills you have developed during your time in the position? 

I learned at the very beginning that you have to assume that other legislators are acting in good faith, no matter how strongly you disagree. Too often in Lansing I’ve seen folks threaten to take their ball and go home if others don’t accept their mandates. That doesn’t lead to good results for anyone. I always say, “Let’s start where we can agree and work from there.”

The Joint Task Force on Jail and Pretrial Incarceration specifically mentioned the Genesee County jail as an example for extraordinarily long pretrial jail stays — sometimes over 2 years —due to a variety of reasons from the complexity of cases to backlog of mental health services and bed availability. In your view, how can the state help counties in combating this problem and ensuring a mental health infrastructure that supports the needs of this vulnerable population?

 The Joint Task Force received input from sheriffs and stakeholders across the state, and it is now clearer than ever that we cannot continue using jails as a substitute for mental health services. We need more support for substance abuse and mental health programming, and to help drive down our jail populations, we need to have a serious conversation about bail reform. We can also consider alternatives to jail for non-serious misdemeanor offenses; the task force found that 60% of jail admissions in Michigan are for misdemeanor offenses, whereas nationally misdemeanors only account for about one-fourth of jail admissions. There is a lot of work to be done to address these complex problems, but the task force has given us a road map with some great first steps. Every year I fight for more resources for the Genesee County Jail, and I’d like to commend the staff there for doing the best they can with the limited resources they have.

Clearly investing in our state and local roads and bridges has been a priority for the Governor and Legislators, as well as our county elected officials.  A long-term funding solution has yet to be agreed upon by all necessary leaders. Do you think 2020 is the year an agreement will be reached?

Time is of the essence. Every day that this legislature fails to find a long-term road funding, roads get increasingly more expensive to fix and dangerous to drive on.  Finding a solution that works for Michigan drivers is doable. There’s no shortage of ideas but the only path forward to a solution is by working on it together.

The voters hired us to solve Michigan’s toughest problems, not just the easy ones. Driveable roads, affordable health care, quality education for each child, good job opportunities and clean water—these are our priorities that we think everyone should be able to agree on.  

This article originally appeared in the April 2020 edition of Michigan Counties.

Name: Sarah Lightner    

District/counties: 65^th/Parts of Jackson, Eaton and Lenawee counties

Committees: Appropriations Committee; Appropriations Subcommittees on General Government (vice chair), Judiciary (vice chair), Corrections and LARA/DIFS

Term #: 1^st

Previous public service: Jackson County commissioner, 6 years

What is the most pressing issue facing Michigan now?

 With the outbreak of COVID-19, public health and safety is the no. 1 issue that we’re currently facing.

Based on your experience, how important are counties to the effective delivery of public services?

They have a unique understanding of their communities, and they just need the tools provided to them at the local level along with adequate funding to continue providing essential services. For example, counties provide numerous health service and emergency management services to their particular area, run health departments, and do tons of community-specific programming that is unique to each municipality within their boundaries.  They are the front lines in providing free, fair, and safe elections, food and water security, and of course collaborating with local hospitals and the health officer to provide service for our health care needs.

Counties also have other priorities that maintain healthy communities through parks departments, maintaining and building infrastructure and roads, provide for public safety through the Sheriff Departments and preserving justice through its court system.

You are one of the sponsors of the legislation that would lengthen county commissioner terms to four years. Why do you think that is a priority?

As a former county commissioner, I think it’s very important to gain some institutional knowledge that helps you do your job well.  It also makes sense to align county commissioners with other county elected officials that already serve four-year terms, such as the Sheriff, Prosecutor, Clerk, Register of Deeds and Treasurer.  I had a great relationship with my fellow public servants, but with turnover every 2 years, there isn’t that ebb and flow of government when one piece of the puzzle is taken out every two years. It makes sense to have time to build a rapport and camaraderie, and it just makes good sense to have all the county elected officials be on four-year terms.

You also introduced House Bill 5488, which would extend the sunset allowing counties to impose reasonable court costs to October 1, 2023, which MAC supports. Additionally, the Trial Court Funding Commission released its recommended reforms at the end of 2019. What is your short-term, or long-term, priority from those recommendations?

The speaker has named me as a co-chair for our work group on trial court funding.  It is one of my priorities to work with all the stakeholders in finally determining a real long-term solution to fund our courts. This is why I sponsored the bill to extend the sunset, but I also have a bill to implement part of one of the commission’s recommendations to bring judicial salaries under the state umbrella.  This shows good faith to our judiciary that this is a priority and that we will take under advisement the work that has been done in prior years to actually put this on the agenda this term and in future terms.  I am in a unique position, as I have personally been involved with these issues through serving as county commissioner, chair of Judiciary for MAC and serving under Governor Snyder as an appointee to a state commission. I have been utilizing the relationships I have built to try to get input on this and have an aggressive timeline to actually write several new trial court funding mechanisms into law.

House Bills 5582-88 were recently introduced. The bills would phase out the sales tax on gasoline at the pump and replace it with an excise tax with revenues going to local roads which would ultimately leave a $780 million hole in the General Fund. Do you worry that statutory revenue sharing to counties could decrease as a result of this proposal?

I think this is smart policy.  As you know, Michigan was one of the few states to have a sales tax on gasoline, and that sales tax was not directed toward our roads.  This puts money directly into the budgets of county and local road commissions for roads, which is what we have all been talking about for the last several years.  I don’t see a problem with it affecting county revenue sharing. The state has a duty to ensure proper funding for our locals; however, the formula for that is outdated as well, and I would still like to see reform there. As long as I am in the Legislature, I will continue to work hard to keep counties adequately funded to perform their duties.

By Barb Byrum/Ingham County Clerk

This article originally appeared in the April 2020 edition of Michigan Counties.

In March, Secretary of State Jocelyn Benson said her office would mail an application for an absent voter ballot to all qualified registered voters who have an election on May 5. Michigan law requires that voters submit a written request for an absent voter ballot. Many city and township clerks now maintain a Permanent Absent Voter (AV) List, where they mail an application for an absent voter ballot to those who have signed up for the list before each election. For those voters that are not already on the Permanent AV List, they can certainly still vote by mail in any election they choose, they would just need to find the request form for that specific election.

 

Typically, May special elections see lower turnout, so perhaps if voters receive an application for an absent voter ballot, more will participate. Benson has argued that by encouraging absent voter participation, her office is helping promote public health and keeping democracy protected. During the March 10 presidential primary election, we learned what a significant increase in no-reason absentee voting, as well as same-day voter registration, looks like for those running elections.

 

When holding an election by mail, which the May special election essentially will be, arguably on a smaller scale than the August 2020 election will be, local clerks are going to need additional resources.

 

The need to start processing ballots the day before the election is heightened, when almost all ballots will be absent voter ballots. The current proposed legislation does not allow for the early tabulation of ballots. The current proposal allows for the processing of ballots, which includes: Opening the outer envelope, while keeping the voted ballot still in the secrecy envelope and removing the ballot stub.

 

Also, some local clerks who have never had an absent voter counting board (AVCB), which is essentially a separate precinct set up for the sole purpose of processing absent voter ballots, are all of a sudden going to find themselves in need of this process. AVCBs are not necessarily difficult to carry out, but will require an extra supply of election inspectors and now, with the concerns about COVID-19, clerks will certainly see a decrease in staff. AVCBs also need their own tabulators that need to be tested and set up for this purpose. Coupled with the need to do significant mailings and data entry for those mailings before the election in a timely manner (tracking in the Qualified Voter File when absent voter ballot applications are received, absent voter ballots are mailed, absent voter ballots are received, etc.), clerks are going to have some new, perhaps even un-identified, opportunities to overcome.

 

Although voting by mail, or as us Michiganders know it, absent voting, seems like it protects everyone’s right to vote, there will still be a need for local clerks to have precincts open and their offices open for those individuals who need to go to the poll to vote or those that need to register to vote with their local clerk on Election Day.

 

Most of the above concerns will land on the shoulders of the local (city and township) clerks, but the County Clerks stand ready to assist in any way we can. Perhaps County Clerks can assist local clerks in coordinating AVCBs, lending extra equipment for AVCBs, or assisting with same-day voter registration in local clerks’ offices. Safe and secure elections are our primary goal and we look forward to continuing to serve the voters of Michigan in that capacity.

Barb Byrum is a board member for the Michigan Association of County Clerks.

By Christian K. Mullett/firm of Cohl, Stoker & Toskey, P.C.

This article originally appeared in the April 2020 edition of Michigan Counties.

Does the Freedom of Information Act, MCL 15.231, et seq. (“FOIA”), apply to public officials’ use of non-governmental email accounts?

In FOIA, it is the stated policy that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials. FOIA’s specific provisions require full disclosure of public records in the possession of a public body. However, these bright-line principles may be blurred when the public official uses a non-governmental email account to conduct government business. 

FOIA subjects all “public records” to possible disclosure unless specifically exempted by statute.  A “public record” is a writing that is prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. Under this broad definition, emails, text messages, social media posts, and even voice mails would be subject to disclosure under FOIA if made in the furtherance of government business.  In Competitive Enterprise Institute v. Office of Science and Technology Police 827 F.3d 145 (D.C. Cir. 2016), the U.S. Court of Appeals for the District of Columbia interpreted this very issue under the federal FOIA statute, wherein it opined:

[A]n agency always acts through its employees and officials.  If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them takes them out the door or because he is the head of the agency.

The Court further commented:

If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his department emails on an account in another domain, that purpose is hardly served … It would make as much sense to say that the department head could deprive requesters of hard-copy documents by leaving them in a file at his daughter’s house and them claiming they are under her control.   

Governmental communications on a private device or personal account should be retained by the government official if they constitute public records. When individual public employees act in their official capacity, they are transacting business of the public body.

However, in practice, the access to certain emails under FOIA is particularly daunting to municipalities when these communications are saved on personal devices and not under the governmental body’s possession or control.

The fact that a personal email account has been used to send or receive public records does not necessarily transform all communications sent or received on that account into public records that would be subject to FOIA. Similarly, social media communications should be retained by the public entity in the same manner as emails if they concern the function of government. This may be problematic in that certain social media platforms automatically delete content.  

While the FOIA law clearly favors disclosure, the Michigan Court of Appeals recently determined in Bisio v. The City of the Village of Clarkston (COA Docket 335422, July 3, 2018, lv granted) that if documents are held by agents of a public body such as a city attorney, the agent is not considered a public body that can be compelled under FOIA to release documents. The Court opined that the statute was clear, in that the definition of “public body” provided in MCL 15.232(d)(iii) does not include officers or employees acting on behalf of cities, townships and villages. In contrast, MCL 15.232(d)(i), which defines a “public body” relevant to the executive branch of government, does include officers and employees acting on behalf of the public body. 

The Bisio case is now before the Michigan Supreme Court and could be reversed, as the decision by the Court of Appeals appears to conflict with the intent of FOIA. Ultimately, time will tell if the Supreme Court opts to follow the Court of Appeals’ narrow interpretation and continue to blur the line between private and public communications, or will overturn Bisio to clarify that FOIA applies to records kept in the hands of municipal officers and employees, regardless of where and how they are kept.  Recently, the Supreme Court entertained oral argument on March 5, 2020, and will release its decision before the end of its current term on July 31, 2020.

One potential solution to provide clarity is to develop a county policy regarding the use (or prohibition) of private email to conduct government business.

Christian K. Mullett is an associate with the Lansing law firm of Cohl, Stoker & Toskey, P.C.